Wednesday, December 05, 2012

Miscarriage of Chief Justice, Sri Lanka Edition




Earlier this week proceedings were initiated in the Sri Lankan Parliament to impeach the Chief Justice of Sri Lanka, Dr Shirani Bandaranayake. The allegations against Chief Justice Bandaranayake are of personal misconduct and failure to disclose her income and her foreign exchange . However, most media sources widely agree that the impeachment proceedings were triggered by an adverse judgment given by her striking down the Divenguma Bill. The judgement required that the bill had to be enacted with a two thirds majority and needed a referendum for one of its provisions.

The bill would have centralized development funds which were previously devolved to local authorities, and would have granted greater discretionary powers to the Minister of Economic Affairs. Devolution has been a long standing demand of Tamil parties and was brought as part of the peace process. However, ethno-nationalist Sinhala politicians want to nullify even the limited devolution that has been introduced. Basil Rajapakse, the Minister for Economic Affairs, is the brother of the President Mahinda Rajapakse. The Speaker of Parliament, who initiated the impeachment proceedings and heads the Parliamentary Select Committee, is Chamal Rajapakse, another brother of the President.

The first two hearings have begun before the Parliamentary Select Committee. Chief Justice Bandaranayake's request to have the hearings made public have been refused, and her motion to two members of the eleven member committee to recuse themselves on grounds of bias (she had ruled against them or their family members) has been ignored. This is not the first attempt to impeach a Chief Justice in Sri Lanka, governments had made attempts to impeach Chief Justice Neville Samarakoon (1984) and Chief Justice Sarath N.Silva (2001). However, the stakes appear to be much higher in this case.

1) The Chief Justice has emerged as a symbol around whom a large number of groups have rallied, including lawyers, trade unions, Catholic priests and the influential Buddhist monks. The government has been forced to bus in counter protestors to demonstrate against the Chief Justice. The support extended by all levels of judiciary and opposition parties to Chief Justice Bandaranayake is worth noting.

She has been in several ways an unusual appointment. She remains to the best of my knowledge the only academic to have been appointed to a Supreme Court in South Asia, and her lack of judicial background had led to several protests by lawyers and judges at the time of her appointment. However, the judiciary as a whole seems to be coming to her defence. On Monday, all the judges of the High Courts and the Magistrate's Courts gathered at her residence and issued a statement of support for the Chief Justice.

When she was sworn in as Chief Justice in 2011, opposition parties that are rallying to her side had been extremely critical of her and made allegations of corruption against her husband. However, akin to the moves by the Pakistani opposition towards Justice Chaudhary, they are becoming increasingly vocal in her support.

2) Similar to proceedings in Pakistan and in post-Emergency India, the Supreme Court has also begun hearing a petition challenging the constitutionality of the entire impeachment process in the Constitution. The Supreme Court has summoned the entire Parliamentary Select Committee before the court to respond to petitions filed by civil liberties groups. The Speaker has ruled that these summons need not be complied with.

3) Commentators have begun to make arguments on the 'basic structure' of the Sri Lankan Constitution and held that the principle of judicial review is central to it, and the courts reserve the right to review constitutionality of any government action.



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